Now Let the Feeding Begin ...

Posted 9:27 PM by Michael Fox

Mercifully, for me and those of you reading this blog, any reporting about the confirmation process of Supreme Court nominee Judge John Roberts, will be limited to his views on employment and labor cases. On that note, one thing I did not know was that he represented Toyota in Toyota Motor Manufacturing Inc. v. Williams, one of the major cases viewed as being a limiting decision interpreting the Americans with Disabilities Act. And for those Senators (e.g. Senator Leahy D-Vt) who have been so liberal in their praise of retiring Justice O'Connor, it will be interesting to see how they can bash Judge Roberts for being an advocate in that case, decided unaminously by the Supreme Court and authored by none other than Justice O'Connor.

But before bowing out of the feeding frenzy, I would make just two more points. First, back in the good old days I believe Judge Roberts is the type of nominee, who based on what is known so far, would have been warmly received and would have been confirmed after an appropriate, but polite confirmation process. That is not a partisan comment, because I have no doubt if the situation were reversed and a comparable liberal, but well qualified from the standpoint of intellect, integrity and judicial temperament were nominated by a Democratic President that the same kind of donnybrook we are about to see would also occur. (My guess is that Judge Roberts is no further right, than Justice Ginsburg was left. The fact that her nomination did not cause a comparable outroar is more a sign of how badly the partisan atmosphere has deteriorated in the 12 years since her nomination rather than a comment on their prospective relationship to the judicial mainstream.)

Secondly, if I were a Democrat, particularly one running for office in the 2006 elections, I would be deathly afraid that the face and image of the party is going to be represented most prominently by Senator Leahy and his right hand person for judicial nominees, Senator Schumer (D-NY). In his post-announcement rush to challenge Judge Roberts, the anticipation of 12 weeks (months?) in the spotlight was all too evident. Maybe we will get a replay of Senator Hatch telling him that he is asking "dumb ass questions" that occurred in Judge Roberts confirmation hearings for the D.C. seat he now holds. See Howard Bashman's post and link to those hearings here. Senator Schumer will of course not be the only big ego in the confirmation hearings, but my guess is that he will be by far the most obnoxious. Apparently, I was not the only one who was less than impressed with the start of the Democratic Dynamic Duo, see Professor Ethan Leib's post about their conference at PrawfsBlawg, that begins, "Why do the Democrats do such stupid things sometimes?"

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